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The Executive and the Independent Judiciary: Protecting Freedom While Establishing Order in the Larger Societal Groupings

The drive towards centralisation leads to the attempt by the executive, in whatever form it manifests, to subordinate and control the judiciary, not just during times of crisis with the implementation of martial law, but at all times and ways, to maintain the power and control of the executive and prevent any effective challenge. Societies that lean more towards the concept of “order” tend to value the freedom of the judiciary somewhat less. Those that lean more towards the idea of individual liberty attempt to maintain and protect the independence of the judiciary. This is done through various mechanisms including the freedom of justices from the threat of arbitrary removal, the development of a body of canons and laws which are applicable throughout the society, which are independent of the arbitrary decision of the executive, and the use of mechanisms such as the jury system to maintain the active role of the citizenry in the adjudication of legal issues. While none of these steps is, in and of itself, sufficient to guarantee the independence of the judiciary, nor are they implemented anywhere in a perfect manner, they all combine together to provide some balance to the otherwise uninhibited control of a central executive.

Sri Aurobindo observes: “The danger of subordinating the judiciary entirely to an executive possessed at all of arbitrary and irresponsible powers is obvious; but it is only in England — the one country always where liberty has been valued as of equal importance with order and not considered a lesser necessity or no necessity at all — that there was a successful attempt from an early period to limit the judicial power of the State. This was done partly by the firm tradition of the independence of the tribunals supported by the complete security of the judges, once appointed, in their position and emoluments and partly by the institution of the jury system.”

The United States, after gaining its independence from England, tried to devise a system that would preserve the independence of the judiciary in the English model. Besides having multiple different judicial systems, based on local, state and national judiciaries, there was a concerted effort to shield the judiciary from overt control by the executive through constitutional authority, lifetime appointment, and citizen participation in trials, along with constitutional protections, guarded by the judiciary, against self-incrimination, undue search and seizure, equal protection under the law, freedom of speech and assembly to address grievances against the government, habeas corpus and protection against executive overreach in the use of torture or other devices to extract confessions.

It is of course a truism that rules and bodies of legal canon do not guarantee that the system as idealized is carried out in actuality as conceptualized, and it must be noted that no government has yet fully succeeded in achieving the ideal balance between freedom and order in the society, with a fully independent and muscular judiciary offsetting the centralising tendency of the executive.

Sri Aurobindo, The Ideal of Human Unity, Part Two, Chapter 21, The Drive towards Legislative and Social Centralisation and Uniformity, pg. 183